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No warning given to pedestrians about sidewalk defect: plaintiff

Amount:

$350,000

Type:

Verdict-Plaintiff

State:

Illinois

Venue:

Cook County

Court:

Cook County Circuit Court

Injury Type(s):

other-massage therapy; other-physical therapy; other-decreased range of motion; shoulder-rotator cuff, injury (tear);
surgeries/treatment-arthroscopy

Case Type:

Government – Municipalities; Premises Liability – Sidewalk, Failure to Warn; Slips, Trips & Falls – Trip and Fall; Premises Liability – Negligent Repair and/or Maintenance, Dangerous Condition of Public Property

Case Name:

Donald Reidelberger v. Chicago Transit Authority and City of Chicago,
No. 2016-L-002406

Date:

July 18, 2018

Parties

Plaintiff(s):

Donald Reidelberger (Male, 70 )

Plaintiff Attorney(s):

Adam M. Gilbert;
Anesi, Ozmon, Rodin, Novak & Kohen Ltd.;
Chicago,
IL,
for
Donald Reidelberger

Plaintiff Expert(s):

John Hefferon; M.D.; Orthopedic Surgery; Chicago,
IL called by:
Adam M. Gilbert

Defendant(s):

City of Chicago, 

Chicago Transit Authority

Defense Attorney(s):

None reported;
for
City of Chicago ■ Michelle Hemphill Ozuruigbo;
Chicago Transit Authority Law Department;
Chicago,
IL,
for
Chicago Transit Authority ■ Robert S. Nathan;
Chicago Transit Authority Law Department;
Chicago,
IL,
for
Chicago Transit Authority

Defendant Expert(s):

Ehimare Akhabue;
Cardiology;
Lake Forest,
IL called by:
Michelle Hemphill Ozuruigbo, Robert S. Nathan

Facts:

On Sept. 11, 2015, plaintiff Donald Reidelberger, mid-70s, tripped and fell on a sidewalk at the Cumberland Blue line train station in Chicago. Reidelberger asserted that he tripped over an elevation in the sidewalk paneling. He claimed a shoulder injury. Reidelberger sued the Chicago Transit Authority, alleging it was negligent in allowing a dangerous condition to exist. Reidelberger also sued the city of Chicago, which was dismissed prior to trial. Reidelberger’s counsel cited photographs taken of the sidewalk to argue that a 4-inch height differential existed, which caused Reidelberger to trip and fall. Counsel also presented Chicago Transit Authority records to show that the agency had conducted inspections of its sidewalks and curbs at the Cumberland Blue line station in May and August 2015. From its inspections, the transit authority rated them a zero out of five, according to Reidelberger’s counsel. His counsel contended the Chicago Transit Authority should have either remediated the defective condition or placed caution tape or some sort of warning to alert pedestrians of the elevation difference. The defense maintained that the photos did not show a height differential. The Chicago Transit Authority contended that its quarterly inspections of the sidewalk did not reveal the alleged elevation discrepancy. According to the defense, during the trial and at his deposition, Reidelberger testified that he was walking in the middle of the sidewalk when he fell. However, two weeks after he had fallen, he took pictures of the area where he claims he was walking. The images showed an alleged defect located on the far left side of the sidewalk in the direction Reidelberger was walking, the defense argued. According to the defense, Reidelberger either fell in an area where there was no unsafe condition, i.e., the middle of the sidewalk, or, alternatively and contrary to his testimony, Reidelberger was walking on the far left side of the sidewalk were the defect was located. Moreover, the defense contended that the defect was open and obvious.

Injury:

Three days after the fall, Reidelberger contacted an orthopedic surgeon for an appointment due to complaints of pain in his left, non-dominant shoulder, but was unable to get an appointment until October 1. In the ensuing weeks, Reidelberger said he iced his shoulder and took over-the-counter pain medication. Upon seeing an orthopedic surgeon, he underwent an MRI and was diagnosed with a left rotator cuff tear. Shortly after coming under care of the orthopedic surgeon, it was discovered that Reidelberger was suffering from atrial fibrillation. His shoulder treatment was suspended while he treated with a cardiologist. In March 2016, Reidelberger underwent an arthroscopy of his shoulder. He treated with physical therapy, which consisted of exercise and massage, through June and then moved to Arizona. He resumed physical therapy in August after making the move. An MRI in November reportedly showed that Reidelberger had re-torn the injured rotator cuff tendon. A second arthroscopy was discussed. Given the 50/50 chances of the second surgery’s success rate, combined with Reidelberger’s cardiac condition, Reidelberger did not undergo the arthroscopy. No further treatment was administered. Reidelberger’s surgeon causally related the rotator cuff injury and treatment to the accident. The surgeon discussed how the rotator cuff tendon re-tore and opined that it was likely to happen again. The physician also testified about the pros and cons of a second surgery, especially given Reidelberger’s cardiac condition. Reidelberger testified that he is severely limited in using his left arm, as he has difficulty carrying objects and performing any tasks that require him to raise his arm above his shoulder. Reidelberger, who now favors his right arm, also testified that he had to give up swimming, as he was an avid swimmer prior to the injury. Reidelberger sought $43,438.68 in past medical costs and $42,438.68 in future medical costs. He also sought $100,000 in past pain and suffering, $385,000 in future pain and suffering, $100,000 for past loss of normal life and $385,000 for future loss of normal life. The defense called Reidelberger’s cardiologist to testify. The physician discussed Reidelberger’s atrial fibrillation and overall cardiac condition. The defense argued that, given Reidelberger’s cardiac condition, the jury should not award him much in future pain and suffering and loss of normal life.

Result:

The jury found Reidelberger and the Chicago Transit Authority each 50 percent liable. The jury’s award of $350,000 was reduced to $175,000 to reflect the comparative negligence finding.

Donald Reidelberger: $85,000 Personal Injury: Past Medical Cost; $85,000 Personal Injury: Future Medical Cost; $45,000 Personal Injury: Past Pain And Suffering; $45,000 Personal Injury: Future Pain And Suffering; $45,000 Personal Injury: past loss of normal life; $45,000 Personal Injury: future loss of normal life

Actual Award:

$175,000

Trial Information:

Judge:

Arnette R. Hubbard

Trial Length:

3
 days

Trial Deliberations:

3
 hours

Jury Vote:

12-0

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel and the Chicago Transit Authority’s counsel. The city of Chicago’s counsel was not asked to contribute.